Martin v. Tarver

Simrall, J.:

There are but two questions for our disposition in this case:

1st. Was the circuit court right in sustaining the demurrer to the third plea.

The plea in effect, is that the note sued on, was a renewal of a former note, payable to the plaintiff, as administrator, and that the compromise and renewal was made without the sanction of the probate court. The effect of the renewal was to postpone the day of payment, or grant an extension of time. An arrangement of this sort, or the compromise of a debt due the intestate’s estate, if made in good faith, is within the competency of the administrator. Kees’ exr. v. Kees’ creditors, 2 Grattan, 116; 2 Lomax Exrs., 291; Bailey v. Dilworth, 10 S. & M., 409. The demurrer was therefore properly sustained.

The recital of the record is, that the case was then submitted to the jury on the issue .joined.

2d. But it appears that there was no replication to the fourth plea. This plea avers that the note in suit, was in renewal of a former one given for a slave sold under a probate court decree. “ That the sale was not made in accordance with the laws and statutes; therefore the title was incomplete, null and void.” The matter of the plea is not a bar to the action. It has been frequently adjudged in this court, that as a condition precedent to the defense of a title, irregular, or defective under probate, sales, the purchaser must, in a reasonable time, rescind the contract by a return or offer to return the property (slaves) purchased. (H® has notice that his title is derived from the judgment of the court, and it is his duty at once to look into the record of the judicial proceedings, and satisfy himself on the point. The plea was defective, but was not so utterly destitute of merit as would warrant the court in treating it as a nullity. In Marshall v. Hamilton, 41 Miss. Rep., 235, it is quite distinctly intimated that if a plea is regularly filed, its legal sufficiency can only be tested by demurrer, if it is entitled to the “ slightest merit.”

The practice, to set aside sham pleas on motion, is well settled — the object being to prevent delay and expense to the plaintiff, and consuming the time of the court in passing on pleas which are a mere fiction. 6 Cowen, 36; 12 Wend., 624. But in such case, the sham or fictitious pleas are displaced upon direct application to the court.

It has been often decided that it is erroneous to put a cause to the jury if there be on file a plea to which there is no answer. Roby v. Bret, MSS. Opinion; Beal v. Campbell, 1 How., 24; Beech v. Mosely, 24 Miss. Rep., 170.

It is the duty of counsel to see that the pleadings are in proper condition for the jury trial. If a cause is reversed in this court, for the reason that we remand this cause, the fault is not in the system of pleading, but in the negligence of the counsel in the circuit court.

Let the judgment be reversed, and cause remanded.